Sabir Shah Vs Amjid Khan etc

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr. A No. 755-P/2024

Sabir Shah VS Amjid Khan etc

Date of hearing: 11.12.2025.

Appellant by: Mr. Shabbir Hussain Gigyani, Advocate.

The State by: Mr. Ayub Zaman, AAG.

Respondents by: Mr. Jehanzeb Khan Khalil, Advocate.

JUDGMENT

SAHIBZADA ASADULLAH, J.- Through this single order, we intend to decide the instant criminal appeal filed by the appellant Sabir Shah, as well as the connected criminal revision No. 316-P/2024, filed by the State through Advocate General, for enhancement of the sentence, as both the matters are arising out of one and the same judgment dated 07.09.2024, passed by the learned Additional Sessions Judge-II, Khyber, in case FIR No. 121 dated 24.05.2022 under sections 302, 311, 34 PPC, registered at Police Station Bara, District Khyber, whereby, the learned

trial Judge has convicted and sentenced the appellant as under:

i. U/s 302(b)/34 PPC, to undergo imprisonment for life as Ta’zir, on two counts, and to pay Rs.

600,000/- as compensation to the legal heirs of each deceased in terms of section 544-A Cr.P.C.

and in default of payment, to further undergo simple imprisonment for six months, on each count.

The sentences shall run concurrently. Benefit of section 382-B Cr.P.C was extended in favor of the appellant.

2.Brief facts of the case are that on 24.05.2022, the complainant, Amjid, while present in the emergency of Dogra Hospital, Khyber, along with the dead bodies of his sister Mst. Fouzia and Asad, son of Jan Mast, reported the matter to the local police, that his sister Mst. Fouzia was married to accused Nabi-ur-Rehman; that his mother, Mst. Jamila Bibi, and his sister, Mst. Saeeda, had gone to the house of the deceased Mst. Fouzia and that his mother informed him that Mst. Fouzia,

along with Asad, has been murdered by accused Nabi-ur-Rehman, Inayat, and Sabir, on the pretext of honor killing by resorting to firearm violence; that upon reaching the spot, he found the dead body of Asad, lying outside the main gate of house of the accused, whereas the dead body of his sister Mst.

Fouzia was found inside her room. Hence, the instant FIR.

3.After completion of investigation, complete challan was put in Court. Provisions of section 265-C Cr.P.C. were complied with and, the appellant was charge sheeted, to which he pleaded not guilty and claimed trial.

In order to prove its claim, the prosecution produced and examined as many as 12 witnesses. After closure of prosecution evidence, statement of accused was recorded under section 342 Cr.P.C., wherein he posed innocence, however, neither he wished to be examined on oath as required under section 340 (2) Cr.P.C, nor wanted to produce evidence in defense. The learned trial Court, after full-fledged trial convicted and sentenced

the appellant, fully detailed in the earlier part of this judgment, hence, this appeal.

4.It was indeed a deeply tragic

incident, in which two innocent lives were taken. The dead bodies were taken to the hospital, where the matter was reported, the injury sheets and inquest reports were prepared, and thereafter the bodies were sent for post-mortem examination. Upon receiving the copy of the FIR, the Investigating officer went to the spot, inspected the spot carefully, and prepared the site plan. During this process, he recorded the exact positions of the deceased. The female deceased was found inside a room, where blood was recovered along with one empty cartridge of 9mm bore.

The male deceased was found lying outside the house, in the street, from which blood was lifted and also an empty cartridge of 7.62 bore.

The Investigating officer also noted that the roof of the room where the female deceased was lying had an opening, evidently made from above, and that the outer door of the room showed clear marks of bullets. These facts, together with the recovery of blood and

cartridge cases, indicate the location and nature of the incident. After the occurrence, the accused went into hiding. Upon his arrest, the appellant faced trial, and at the conclusion of the trial, he was convicted and sentenced vide the impugned judgment.

5.The learned trial Court, after considering what it regarded as the essential aspects of the case, and applying its judicial reasoning to the evidence on record, held the appellant responsible for the commission of the offence. The question before this Court is whether the learned trial Court was correct in reaching this conclusion, and whether the evidence on which it relied is sufficient to support its findings. It is not disputed that the main accused, the husband of the female deceased, remains absconding, along with another. The appellant, being the brother of the absconding accused, alone stood trial. The central issue, therefore, is whether the appellant can, in law and fact, be held equally responsible, and whether the prosecution has shown convincingly that he was present and actively involved in the crime. There is no

doubt that the incident shocked the surrounding community, for both victims were killed in a brutal manner, yet the severity of the crime alone cannot prove the guilt of the appellant, rather the prosecution must show, with clear, credible, and independent evidence, that he was involved beyond reasonable doubt. To avoid any miscarriage of justice, this Court finds it necessary to carefully review all the evidence on record, to reconsider the statements of witnesses, and to determine whether, taken as a whole, the evidence is sufficient to support the conviction.

6.The issues for determination

before this Court are as to whether the incident occurred in the manner claimed by the prosecution and at the time recorded; whether the eyewitnesses were indeed present at the scene at the time of the occurrence and subsequently, when the Investigating officer visited the spot and prepared the site plan;

whether the complainant reported the matter promptly, and whether the information was communicated by the eyewitnesses as claimed; whether the medical evidence

supports the case of prosecution or introduces any doubt, and whether the prosecution has proven the guilt of the appellant beyond reasonable doubt.

7.In order to properly appreciate the circumstances surrounding the present case, it is necessary to carefully examine the evidence collected by the prosecution, together with the account furnished by the eyewitnesses whose statements were recorded before the learned trial Court. It is not disputed that the unfortunate incident took place inside the house of the absconding co-accused, who stands charged, along with others, with the murder of his wife as well as of the male deceased whose body was later found in the street. The central task before this Court is to determine whether the present appellant, together with the two absconding co-accused, was responsible for the offence. The complainant and the eyewitness were examined. The complainant explained the circumstances in which he received information about the occurrence. The eyewitness, examined as PW-06, stated that it

was upon the information supplied by the absconding co-accused that she,

accompanied by the eyewitness Mst. Jamila, reached the house, where they saw the accused grappling with the male deceased.

She further stated that, after a struggle, the male deceased managed to break free and run towards the street, where he was pursued by the absconding co-accused and the appellant, and fired upon. She further stated that an initial gunshot had been fired at the male deceased inside the house, however, this point calls for careful consideration, for it must be seen whether any firearm injury was in fact sustained inside the courtyard or whether all injuries were inflicted outside, as suggested by the physical and medical evidence. The eyewitnesses further stated that the lady deceased had locked herself in a room. One of the accused, they said, climbed onto the roof, created an opening, and fired through it, shots were also fired at the outer door. Eventually, the accused forced their way inside, whereupon the absconding co-accused and the husband of the deceased allegedly fired at

her, causing her immediate death. They further described how they reached the house, narrated how the incident unfolded, and explained the manner in which the dead bodies were later shifted to the hospital, where the matter was formally reported. Both witnesses were cross-examined at length, as the defence sought to extract material favorable to the appellant. This Court must consider whether the defence succeeded in creating doubt in the case of prosecution, or whether, on the contrary, the prosecution has been able to link the appellant convincingly with the tragic incident. Before this Court proceeds to examine the atmosphere in which the incident occurred, it is useful to highlight the relationship between the appellant, the deceased, and the absconding co-accused.

The appellant is the brother-in-law of the deceased lady and the real brother of the absconding co-accused. Notably, the record does not indicate that he resided in the house where the incident took place. This gives rise to an important question that how, when, and by whom was he informed that the deceased

were confined inside the room, and at what stage did he arrive at the scene. According to the complainant, she and the eyewitness reached the house earlier, and upon arrival they saw the male in the courtyard and female deceased confined in the room. They then observed a struggle between the accused and the male deceased, his escape, the pursuit by two of the accused, and the subsequent firing, so it becomes essential to examine what connection the appellant had with the commission of the offence, how he entered the house and how his presence was noticed by the eyewitnesses. This Court must consider what interest the appellant may have had in killing either of the deceased, when and by whom he was informed, how he arrived at the spot and whether he participated in firing at the female deceased. The eyewitness account states that he did not fire at the female deceased at all, and that his alleged role was confined to the killing of the male deceased, yet the physical evidence indicates that the male deceased did not receive any firearm injury inside the house, instead, all shots

appear to have been fired outside in the street.

Both the witnesses materially contradicted each other. PW-06 stated that one of the accused had fired, however, she failed to specify which of the two accused had fired at the male deceased and at the mother of the accused inside the house. In contrast, the complainant stated that as a result of the firing by the accused facing trial along with the absconding accused, Inayat, their mother sustained injuries, whereas the deceased Asad had gone out of the house. The Investigating Officer also did not observe any trail of blood leading from the interior of the house, and no bullet marks over the door.

These, among other matters, are the essential aspects of the case which this Court is bound to examine with care before determining the extent to which the prosecution has succeeded in establishing the guilt of the appellant.

8.We are as shocked as others were by the brutality of the incident, yet it is not the sheer gravity of the offence, nor the extent of damage caused, that can determine the involvement of the appellant in the commission

of the crime, rather this Court must examine with care how, if at all, the appellant may be connected with the murder of either deceased, particularly the male deceased, who sustained firearm injuries outside the house. The prosecution endeavored to establish its case through what it describes as independent witnesses, however, one witness is the mother of the lady deceased and the other her sister.

Both resided elsewhere and were not present in the house at the time of the occurrence.

Their presence was allegedly procured by the absconding accused Nabi-ur-Rehman, the husband of the deceased lady. According to their account, the absconding accused visited their house early in the morning and informed them of the presence of a male inside the room with the deceased lady, and of their confinement. Acting on this information, the two witnesses proceeded to the house, where they claim to have observed a struggle between the accused and the male deceased.

They further stated that, as a result of this grappling, the male deceased suffered severe physical injuries and then attempted to

escape. He ran out of the house, was chased by the absconding accused, and was subsequently fired upon. This Court is not inclined to disbelieve the statements of these witnesses merely for the sake of doubt, nor does this Court doubt that their presence at the spot, if proved, would have exposed them to highly disturbing circumstances, however, being ladies who claim to have encountered a shocking scene, their recollection of events may not be expected to be exact in every detail, therefore, even if their presence is accepted as proved, this Court must still examine whether their statements provide a sound and reliable basis upon which the appellant may be held responsible for the murder. This Court must carefully assess this particular aspect of the case, especially in view of the testimony of the complainant and the detailed accounts provided by the eyewitness, who appeared before the learned trial Court and directly accused the appellant and the absconding co-accused of committing the offence. There is no dispute that the tragic incident unfolded inside the house of the lady

deceased, specifically, the house of the absconding co-accused, it is equally undisputed that the own house of the appellant stood at some distance from the place of occurrence, therefore, the issue is to determine when and how the appellant was called to the house, and whether he was already present when the eyewitnesses reached the scene. Even if one were to assume that the appellant was in the house by the time the witnesses arrived, this Court must still determine the precise role he played, how he participated in the incident, and whether he in any way assisted the absconding accused in killing the deceased. The witnesses stated that, when the grappling began, the male deceased ran out of the house, while the lady deceased locked herself inside the room, remaining confined within. It was further explained that when the inner door could not be broken open, one of the accused climbed onto the rooftop, created an aperture, and fired through it, meanwhile, the husband of the deceased fired repeatedly at the outer door of the room. If these circumstances are accepted,

this Court must examine the involvement of all three individuals, the extent of the intention of appellant, and the actions of the absconding co-accused. When these aspects are considered collectively, there remains little uncertainty that the appellant had minimal motive to kill either the lady deceased or the male deceased, whereas the absconding co- accused had a clear and pressing intent to accomplish their purpose. This is reflected in their conduct, one absconding accused climbed the rooftop, forced an opening, and fired through it, the other, the husband of the deceased, fired upon the outer door, so their persistence in breaking the door and forcing entry demonstrates their determination to kill.

In such circumstances, this Court is persuaded that the principal and decisive acts were committed by the absconding co-accused.

They alone were charged with the murder of the deceased lady inside the house, they alone took strenuous measures to break the door and compel her to open it and when their efforts failed, one of them created a hole from the rooftop to shoot inside. It was in this

manner that the lady deceased tragically lost her life. When all these circumstances are viewed together, this Court is confident in holding that the role of the appellant is distinguishable from that of the absconding co- accused. Both eyewitnesses claim to have seen the killing of the lady deceased, yet neither assigns any act of firing upon her to the appellant. The allegation against the appellant relates only to the killing of the male deceased, however, the surrounding circumstances strongly indicate that the male deceased did not receive any firearm injury inside the house, as admitted by the complainant, but was killed outside the house. The Investigating officer noted the trail of blood in the street, and if the male deceased had received a gunshot wound inside the premises, it is unlikely that he could have travelled outside without leaving a corresponding blood trail within, therefore, these are the essential circumstances which this Court must give due weight to when determining the guilt, involvement, or innocence of the appellant.

9.The Investigating Officer visited the place of occurrence, upon pointation of the complainant prepared the site plan. The recovery of blood from the respective locations where the deceased fell, coupled with the seizure of crime empties, unmistakably confirms that the incident transpired at the place alleged. This finding stands reinforced by the further observation that the rooftop of the room in which the female deceased had been confined, and thereafter killed, contained an aperture apparently made from above.

During cross-examination, the Investigating officer was rigorously questioned on all material aspects of the case in an effort to procure some exculpatory detail. Nonetheless, he explained each feature of the spot inspection with clarity and consistency, yet significantly, he could not point to any circumstance reflecting that the appellant shared equal complicity with the absconding co-accused, and he did not state that the appellant resided in the house where the occurrence took place, nor could the prosecution witnesses establish that the

premises were jointly owned or jointly occupied by all the accused. On the contrary, the circumstances strongly indicate that the residence of the appellant was separate and distinct from the house of the deceased, wherein the unfortunate episode unfolded. It is, indeed, not disputed that both the accused and the deceased lived in close proximity to each other, therefore, it is entirely plausible that, upon hearing commotion emanating from dwelling of his brother, the appellant too, might have rushed towards the house, yet the purpose or intention behind his arrival remains wholly unascertained. If it is accepted, as the evidence suggests, that the appellant lived separately, then his mere presence at the scene, prompted by disturbance in house of his brother, cannot by itself render him liable for participation in the offence. In such circumstances, where an alarming event occurs within a family residence, it would be natural for close relations to gather to ascertain what had transpired, therefore, this Court must scrutinize the intention with which the appellant approached the house. If his

arrival was impelled solely by the disorder within the residence, then such presence cannot, without more, be interpreted as evidence of intent to kill or participate in firing.

This Court must, instead, draw inferences regarding involvement and intention from the physical evidence and the testimony of the witnesses. On this score, the witnesses assign only a minimal role to the appellant. They do not state that he fired at the locked door of the room, nor that he ascended to the rooftop to create the aperture, nor, indeed, that he discharged any shot at the female deceased.

This Court must next determine whether the male deceased was fired upon in the presence of the witnesses, and whether they actually observed him sustaining firearm injuries during the same episode. Even assuming, for the sake of argument, that the appellant engaged in physical altercation with the male deceased, such conduct, standing alone, would not constitute liability for murder. The circumstances suggest that an intruder was found within the house of brother of the appellant, so in such a scenario, it would be

natural for the family members, including the appellant, to react instinctively. The tumultuous conditions prevailing at the time evidently clouded the perceptions of the witnesses, who presumed that the male deceased had been fired upon inside the house, however, had he in fact been shot within the house and thereafter physically subdued, he would not reasonably have been able to flee. The evidence, instead, points towards the contrary, the male deceased rushed out of the house, was pursued, and shots were fired thereafter.

This Court therefore finds that no firearm injury was inflicted upon him inside the house rather, the firing took place outside. Regarding the incident outside, the witnesses are not ocular witnesses, they merely attribute the earlier round of firing to the accused because they were inside the house and perhaps observed the initial scuffle. Thus, even if the appellant is conceded to have engaged in physical contact with the male deceased, such behavior, given the provocative circumstances, cannot fasten upon him the liability for homicide. There is no basis for applying the doctrine of common

intention, for the evidence does not reveal any shared design to kill, instead, it discloses an impulsive reaction to the presence of an intruder. If the appellant struck the male deceased, and if that is proven, then such conduct may be explained as a defensive or impulsive reaction, understandable in the moment, but the act of firing, which ultimately caused death, must be attributed to the individual who actually fired the shots, and must be proven accordingly. The witnesses have not established that the appellant fired at the male deceased outside the house. In the light of these circumstances, this Court is fully persuaded that the role of killing the female deceased cannot, by any stretch, be assigned to the appellant, nor can the doctrine of common intention be invoked so as to make him equally liable for her death. He may only be held accountable for the specific acts that are attributable to him and, on the evidence, that act appears limited to a physical assault which, in its context, was an impulsive response to the presence of a stranger within the home of a close relation. The act of firing

and causing death stands on a wholly different footing, and cannot be imputed to him in the absence of cogent and reliable evidence.

Hence, the role of the present appellant stands clearly distinguishable from that of the absconding co-accused. This Court must therefore assess the evidence only to the extent it concerns him, keeping in view the precise allegations levelled against him and the material brought on record by the prosecution. The Court is disinclined, at this stage, to embark upon a detailed inquiry into whether the medical evidence supports or contradicts the prosecution version, for such an approach may inadvertently prejudice the case of prosecution. The real question before this Court is whether the involvement of the appellant in the tragic occurrence has been established, and whether he can be held responsible for the murder of either of the deceased persons, because of his presence and because he assaulted the male deceased.

10.It is evident from the record that the appellant has not been shown to have engaged in any act connected with the killing

of the female deceased. The allegation against him pertains solely to the firing upon the male deceased, yet as already observed, there is no reliable indication that any shot was fired at the male deceased inside the house. The Investigating officer did not state that the male deceased sustained a firearm injury within the premises. Had such an occurrence taken place, the Investigating officer would undoubtedly have confirmed it. The prosecution witnesses appear to have labored under the mistaken impression that the male deceased was also fired upon inside the house and sustained injuries in the same episode. In such circumstances, this Court is confident in holding that the participation of the appellant in causing injuries to the male deceased outside the house has not been established. The witnesses did not claim that, immediately after the incident inside, they rushed outside and saw the appellant firing at the male deceased.

On the contrary, the evidence suggests that the witnesses remained inside the house, and that the male deceased fled, pursued by the accused. In these circumstances, this Court

cannot unreservedly accept that the description given by the witnesses of the involvement of the appellant represents the complete truth. This is not to cast aspersions on the veracity of the witnesses, nor is this Court inclined to declare them unreliable. The situation was one of extreme turmoil, a fierce struggle ensued between the parties, followed by firing, the witnesses, being women, found themselves exposed to a violent scene in which the daughter of one of them was brutally killed in their very presence. They witnessed efforts to break open the door, saw an aperture being made from the rooftop, and heard gunfire directed at the room in which the lady deceased had taken refuge. It is only natural that such harrowing circumstances, coupled with the intense physical struggle between the accused and the male deceased, would have severely disturbed their mental composure. In that state of shock, they might well have believed that the firing which ultimately struck the male deceased occurred inside the house, when in fact it transpired outside. These traumatic conditions could

have clouded their recollection of certain details, but they do not render the witnesses untrustworthy. Their presence on the spot at the relevant time stands established. What this Court doubts is not their credibility, but their capacity, in the midst of chaos, to observe and narrate each and every detail accurately. The confusion between firing inside the house and firing outside was the product of the alarming situation, not of any intention to mislead, so the benefit of this ambiguity must be extended to the appellant. At the same time, such benefit cannot be extended to the absconding co-accused, for the credibility of the witnesses is not under challenge. The witnesses have remained consistent on all material aspects of the case. It is only their inability, due to the prevailing havoc, to distinguish between what occurred inside and what occurred outside the house that prevents this Court from fastening liability for the firing upon the appellant. Their testimony, confined to what they actually saw, may be relied upon, yet that testimony, properly appreciated, assists the appellant alone to the extent indicated above.

11.As the appellant alone stood his trial, this Court is required to examine only the evidence collected against him by the prosecution, the specific role attributed to him, and the chain of circumstances which may either connect him with the offence or exonerate him. Though this Court cannot, in the absence of the absconding co-accused, determine their culpability, it remains our obligation to assess the alleged involvement of the appellant in light of the statements recorded and the circumstances disclosed by the record. As already observed, this Court is not prepared to conclude that the exoneration of the appellant stems from any disbelief in the testimony of the witnesses. On the contrary, this Court is firmly of the view that the extreme disorder and agitation surrounding the incident impeded the ability of the witnesses to recall the finer and more delicate details of the occurrence. In such a situation, the inability to recount minute particulars, coupled with the physical circumstances indicating no participation of the appellant in the fatal assault, must be taken into account,

particularly since the eyewitnesses did not see the male deceased, who was fired upon outside the house, being shot by the appellant.

12.Our attention was invited to the unreported case of this Court i.e., Criminal Appeal No. 368-P/2014, titled “Mian Gul VS Gulab Said etc”, and emphasizes that there such benefit was not extended. Having given our anxious consideration to the arguments advanced and the case-law relied upon, particularly “Mian Gul VS Gulab Said and others”, we are of the considered view that the principle embodied in the Moorov Doctrine cannot be mechanically transplanted onto the facts of the present case. The doctrine undoubtedly permits the Court, in appropriate circumstances, to draw an inference of continuity and common design where multiple incidents form part of a single course of criminal conduct, however, its application is conditioned upon the existence of striking similarities, proximity of events, unity of purpose, and demonstrable participation of the accused in each episode. In that very case of “Mian Gul Vs Gulab Said and others”, the

factual and evidentiary foundation justified such an inference. There, all the accused acted in concert, they fired indiscriminately in the first incident, and forensic evidence in the form of empties of different calibres recovered from the second place of occurrence conclusively established their continued participation. The motive was singular, the conduct uniform, and the chain of events uninterrupted. It was in that backdrop that this Court treated both incidents as inseparably linked and fastened joint liability upon all the accused, however, the present case does not admit of the same treatment. Though the two incidents, one occurring inside the house and the other outside, are undoubtedly connected and arise out of the same underlying motive, but the evidence does not establish that the appellant acted with the same degree of intent, brutality, or interest as the other accused. The witnesses did not attribute to him the role of firing, either inside or outside the house, nor does the investigative evidence, including the absence of a blood trail inside the house, support the conclusion that the male deceased

was shot therein. While the incident outside the house cannot be viewed in isolation or discarded merely because it was not directly witnessed, its evidentiary value must be assessed with caution. In doing so, the conduct of each accused assumes decisive importance. The material on record distinctly points towards the absconding accused as the principal actors in the act of firing and the execution of the fatal assault. The presence of the appellant appears incidental, and his conduct does not reflect the decisive intent or brutal resolve that culminated in the killing of the male deceased. Therefore, though this Court is not inclined to hold that the appellant bears no liability whatsoever, given the interlinked nature of the occurrences, it would be unsafe and unjust to connect him with the act of firing upon the deceased outside the house. Proximity and connectivity of events, by themselves, cannot be the sole determinants of criminal liability in the absence of clear evidence of participation and intent. In these circumstances, we hold that while both incidents form part of a connected narrative,

the appellant cannot be fastened with responsibility for the murder of the male deceased occurring outside the house. His case, to this extent, warrants differentiation, particularly when the role of the remaining accused is yet to be finally adjudicated upon.

These constitute the essential aspects of the case which this Court is obliged to consider, and upon such consideration, this Court is confident in holding that the appellant is entitled to the benefit of these circumstances.

Indeed, the attending facts lead this Court to no other conclusion than that the prosecution failed to establish the participation of the appellant in the offence, especially with respect to the murder of the male deceased, which occurred outside the house, and for which the appellant was not assigned the role of firing, nor do the facts suggest that he acted under the impulse of any shared or common intention, so his liability, if any, must be assessed strictly on an individual basis, and upon such assessment, the appellant is entitled to the benefit of doubt. The impugned judgment, insofar as it concerns the appellant,

rests upon reasoning that finds no support in the evidence on record. The learned trial Court thus erred in holding him responsible for the commission of the offence. We cannot turn a blind eye to his role in the occurrence or to his participation therein. However, upon a careful appraisal of the attending circumstances, we are unable to hold him responsible for sharing any common intention with the co-accused. At best, his liability is confined to the extent of his individual participation in the physical altercation. Even in that respect, he cannot be visited with penal consequences, as it was the deceased who forcibly intruded into the house, and such unlawful intrusion provoked a sudden free fight, which compelled him to act in the manner alleged. The question of common intention and similar intention came up for consideration before the apex Court in as case reported as (PLD 2007 SC 93), titled “Shaukat Ali v. State”, wherein the Apex Court was pleased to examine this aspect in depth and to elucidate the fine yet crucial distinction between common intention and similar intention. In doing so, reliance was also placed

upon the judgment rendered in “Durai and others v. State” (2025-2-LW(Crl)232,

2025:MHC:1757, 2025 (2) MWN (CR.) 571).

Notably, in “Durai and others v. State”, as well as in “Shaukat Ali v. State”, the Courts drew authoritative guidance from the earlier judgment of the Indian Supreme Court in “Pandurang and others v. State of Hyderabad”.

Since, all three judgments considered and relied upon the principles enunciated in “Pandurang and others v. State of Hyderabad” (1955 Cr.LJ 572), this Court deems it appropriate to reproduce the relevant paragraph therefrom, which reads as under:

"32. ...It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor[10]. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre- arranged plan. In a case like that,

each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King Emperor[11] and Mahbub Shah v. King Emperor (supra). As Their Lordships say in the latter case, "the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice".

So we are inclined to hold that the case of the appellant squarely falls within the parameters laid down by the Courts in the judgment.

13.The cumulative effect of what has been stated above leads this Court to the irresistible conclusion that the prosecution has failed to establish its case against the appellant insofar as his alleged involvement in the murder of either of the deceased is concerned. However, while his presence at the spot and participation in a physical altercation stand proved, the same, by itself, does not

entail penal liability, as it was the deceased, being a stranger to the house, who unlawfully intruded therein, and such intrusion provoked the reaction of the appellant. The impugned judgment suffers from inherent defects which call for interference. The instant criminal appeal is allowed, the impugned judgment is hereby set aside, and the appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other criminal case.

14.Now, adverting to the connected Criminal Revision No. 316-P/2024, filed by the State for enhancement of the awarded sentence, since the appellant has succeeded in securing acquittal and the impugned judgment has been set aside, so the instant criminal revision has lost its utility, the same is dismissed as such.

Announced

Naqqash Haider

JUDGE

JUDGE

Division Bench.

Hon’ble Mr. Justice Sahibzada Asadullah, J. Hon’ble Mr. Justice Dr. Khurshid Iqbal, J.